IBRAHIM DAUD THAIM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Since common questions of law and fact arise in this group of petitions we intend to dispose of these five petitions by this common order. It is not necessary to set out elaborately the facts of each of the petitions suffice it to say for our purposes that the respective detention orders challenged in each of these petitions is in pari materia and therefore we will set out only one order by way of a a sample order to appreciate the challenge raised in these petitions to the impugned order of detention.

(2.) The order which we set out is an order which is sought to be impugned in the Special Criminal Application No. 669 by the detenu Ibrahim Daud Thaim. It may be stated at the cost of repetition that the impugned order in each of these petitions is pari materia. In view of the judgment of the Supreme Court in Criminal Appeal No. 371/85 between Satar Habib Hamdani v. K. S. Dilipsinhji and others with Criminal Appeals Nos. 651 to 655 of 1985 between Jusab Hazi Ismail and others v. K. S. Dalitsinhji and others dated December 20 1985 (now reported in (1986) 1 SCC 544) the petitioners have sought leave to amend the petitions to raise additional ground challenging the impugned order that continued detention of the respective detenu is vitiated inasmuch as the detention becomes ultra vires Article 22 of the Constitution of India. We have permitted the petitioners to amend the petitions as prayed for. Ordinarily on a petition being amended we would have granted time to the respondents to file the replyaffidavit. However the learned Public Prosecutor appearing for the State Government frankly stated that the orders issued in all the present cases under Section 8(f) of COFEPOSA after the receipt of advice from the Board by the State Government did not comply with the 719 requirement of Section 8(f) as amended by the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (58 of 1984). We have asked the learned Public Prosecutor to put the necessary orders passed in-connection with the respective detenu on the record of these cases. The learned Public Prosecutor has frankly stated that the Advisory Board has also not advised about the continued detention as required by amended Section 8(c) of COFEPOSA. However he urged that there is substantial compliance of this requirement since the Board has advised that the detention of the person concerned was and is necessary and therefore the Court must view this advice as sufficient compliance of the obligation prescribed under amended Section 8 (c) of COFEPOSA. We may add that this very contention has not found favour with the Division Bench of this Court consisting of A. M. Ahmadi and P. H. Shukla JJ. in Special Criminal Application No. 689/85 and other companion matters. For our purposes we need not go into this larger question because for the reasons stated in the order of the Supreme Courtin the aforesaid Criminal Appeals an order made by the State Government in exercise of its power under Section 8(f) of COFEPOSA may be vitiated and it may be ultra vires Articles 22 of the Constitution of India if it fails to comply with the requirement of amended Section 8(f) of COFEPOSA.

(3.) The result is that the impugned detention order in each of these petitions is for self-same reason vitiated and requires to be quashed and set aside and writ of Habeas Corpus should be issued enjoining the respondents in each of these petitions to release the detenu forthwith unless he is required for any other purpose in law. Rule is accordingly made absolute in all these five petitions. Order accordingly.